An insider's view of what is really happening in the Harris County Criminal Courts

Tuesday, December 20, 2016

The Buzbee Dismissal

Okay, so the CJC has been a pretty big hotbed of activity over the past 24 hours. I will talk about Kim Ogg's press conference in a post after this one, but I wanted to begin with discussing the rather murky circumstances surrounding the dismissal of prominent attorney Tony Buzbee's DWI case yesterday.

First off, in the interest of full disclosure, Buzbee's attorneys, Paul Doyle and Allen Tanner, are both good attorneys and good friends of mine. I'm not going to talk about the facts behind Buzbee's arrest, because I don't know the facts. I will say, however, that if you are a defense attorney who gets a dismissal for your client, then you've done a good job for your client. Period.

The second thing I will say is that Brian Rogers did a very good write up about the facts of the case. Brian and I aren't friends, but he did do a nice job with a thorough article here that seems to cover the interesting aspects of politics and law on this case.

So, at the risk of regurgitating Brian's article, here's the short version.

1. Pre-trial diversions on DWI cases are not uncommon if the cases meet certain criteria (i.e., First Offender, Blood Alcohol Content under .15, No Accident involved).

2. Those pre-trial diversions typically last 1 year and have specified conditions.

3. Those 1 year terms are rarely (if ever) terminated early.

4. They require an acknowledgement of guilt and a signed contract with the District Attorney's Office, but no plea in front of a judge.

5. If they are successfully completed, the case is dismissed.

6. Judge Bill Harmon of the County Court at Law # 2 of Harris County does not allow these agreements to take place in his court.

7. Tony Buzbee was in Judge Harmon's court.

8. Tony Buzbee was on a pre-trial diversion in Judge Harmon's Court.

9. Tony Buzbee got a dismissal signed by Devon Anderson that stated he had completed the terms of a pre-trial diversion.

It is mildly complicated, but if you look closely, these 9 statements cannot all be true in the case of Tony Buzbee.

The current insinuation coming from the Defense Bar (and others who aren't fans of Devon Anderson) is that Buzbee was never, in fact, on a pre-trial diversion. The argument is that Devon just simply dismissed his case as a favor to somebody, and claimed her rationale was that he had completed the pre-trial diversion. If that is the case, the argument continues, she signed off on a government document that wasn't true.

And that could be considered to be a crime.

Whatever the truth of the matter behind the Buzbee dismissal, it sure as hell looks bad and looks like political favoritism being played.

The fact that Devon signed off on the dismissal herself is not all that important, in my opinion. Whether it was done with clean or dirty hands, Devon was making sure that the buck stopped with her.

If Buzbee was, in fact, on a pre-trial diversion, then terminating it early would not necessarily be the biggest scandal on earth. Sure, there is some preferential treatment there, but at the end of the day, a pre-trial diversion contract is between the D.A.'s Office and the accused. If the D.A. wants to modify it to the Defendant's benefit, then the only person who would complain would be ---- well, all of the D.A.'s enemies. I can recall a certain Houston Texans wide receiver (and Super Bowl MVP) that had his DIVERT program terminated a little early under Pat Lykos, I believe.

The fact that it is a contract between the D.A. and the Defendant also means that if Devon wanted to give Buzbee a better contract than every other Defendant in Harris County got, that would be okay, too. It looks terrible and sketchy as hell, but it still wouldn't be illegal. For instance, if she wrote up a Pre-Trial Diversion Contract that said, "The Defendant shall not go on a drunk bender for the next three days, and if he complies with this rule, the case shall be dismissed," that would work.

The only way Devon would have potentially broken the law would be if no such agreement existed whatsoever and she wrote down in a court document dismissing the case.

It is clear that he wasn't on a traditional DWI PTI that our clients, such commoners, would receive. I know this because none of his resets were long enough to have a SALCE done and then reviewed by the DAO. That process takes at least 45 days. Given that fact along with the fact that his setting on 11/30 was a DISPO setting and then his setting on 12/9 was a DISMISSAL setting, and it's clear that this was an unusual arrangement that our clients would never even be in consideration for. Our clients would've had to take the SALCE and then sign a contract. The case would then be reset for DPIH, if I'm not mistaken, for a year. Based on that fact, it's obvious that this wasn't a PTI. -M-

Anon 5:53 p.m.,I don't disagree that it certainly doesn't resemble a PTI that any of us are familiar with. I'm just wondering if there is a CYA agreement that can be used to show there was some semblance of a PTI down the road.

This is ridiculous that everyone is making such a huge deal over this. Name one DAO in this entire country which doesn't operate the same way. Is anyone so naive as to believe this didn't happen under every other DA that has ever held the job in every county in this country? Everyone who has been a prosecutor for any length of time has seen their share of "political expediency". Some old timers may not have seen it with JH but it happened even when he was running the show. And you know what, I think the public realizes this and accepts it. Like your mother told you, life ain't fair...

I'm not a member of the Harris County Criminal Lawyer's Association, but I have heard they are internally scheming to disrupt the Buzbee dismissal. If that's true, they are the biggest bunch of petty losers ever. They should applaud the work of their brethren who achieved a great result for a client. Their whining is so unbecoming of tough criminal defense lawyers. Give Mr. Doyle and Mr. Tanner a pat on the back and move on.

It is entertaining to watch a bunch of defense attorneys get jealous and upset that another defense attorney got a good result for a "citizen accused" as they like to phrase it. Seems like a bunch of middle school girls upset that Brittney got the lead role at the senior musical. As Tony said...Look in the mirror and aspire to be a better lawyer.

10:21 "Look in the mirror and aspire to be a better lawyer by making larger campaign contributions to district attorneys so that they are more amenable to your suggestions as to what result your client should receive".

"It is entertaining to watch a bunch of defense attorneys get jealous and upset that another defense attorney got a good result for a "citizen accused" as they like to phrase it."

So I guess you've never met a bunch of defense lawyers. For all of the talk about how supportive the defense bar is, they generally cannot wait to jump on someone else's mistake, and are petty as hell about their successes.

There are exceptions, and quite a few, but the group as a whole is a bunch of whiny little punks.

About Me

I practice criminal law and criminal law only. I've been involved in the criminal justice system since I was in college, and I've been practicing in Houston for over 18 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.